Rodriguez v. Penrod
| Decision Date | 11 February 2020 |
| Docket Number | Civil Action No. 1:18-cv-00240 (CJN) |
| Parties | ROBERT W. RODRIGUEZ, Plaintiff, v. VIRGINIA S. PENROD, Defendant. |
| Court | U.S. District Court — District of Columbia |
Lieutenant Colonel Robert W. Rodriguez, U.S. Army (retired), was an officer in the New York Army National Guard in the 1990s. Compl. ¶ 1, ECF No. 4. Near the end of his career Rodriguez blew the whistle on certain personnel accounting techniques that had the effect of overstating the number of soldiers in active service (and thereby inflating the Guard's budget requests). Id. ¶ 14. He alleges that he was then subjected to illegal retaliation and forced to retire. Id. ¶¶ 2, 14-24. More than two decades later, he continues to litigate the aftermath of those events. In this Court, he challenges the Defense Department's decision on the appeals of his administrative petition before the Army Board for Correction of Military Records, on both procedural and substantive grounds, under the Administrative Procedures Act (APA), 5 U.S.C. § 706. See generally Compl. Before the Court are the Parties' Cross-Motions for Summary Judgment. See Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 13; Pl.'s Mot. for Summ. J., ECF No. 14. The Court finds that the Department's action on Rodriguez's appeal was adequate under the APA and therefore grants summary judgment to Defendant.
Rodriguez was commissioned in the Army Reserve in 1971 and served in a variety of positions over the next two decades. See Army Board for Corrections of Military Rs. R. of Proceedings of Aug. 5, 2010 ("First Board Decision") at 4-5, Pl.'s Deferred App'x ("D.A.") 522-23.1 In 1994 he assumed command of the 1st Battalion, 105th Infantry Regiment. Id. at 5, D.A. 523. He was promoted to the rank of lieutenant colonel on December 19, 1994. Id. In 1996, Rodriguez's commander, Colonel Dale Barber, relieved him of command because Rodriguez's battalion arrived at a summer training exercise with nearly 15% fewer soldiers than expected. Col. Barber's Mem. of Aug. 11, 1996, D.A. 206. Shortly thereafter, Rodriguez made a report to the New York Army National Guard's Inspector General and subsequently contacted the State's Adjutant General. Pl.'s Mem. of August 14, 1996, D.A. 207. Rodriguez was reassigned to an administrative position pending further action. First Board Decision at 9, D.A. 527.
Later that year, Major General Robert Rose, who was then the New York Guard's Commanding General, issued Rodriguez a letter of reprimand. Maj. Gen. Rose's Mem. of Oct. 16, 1996, D.A. 217. The letter purported to justify Rodriguez's relief from command as the "direct result of [his] failure to control the AWOLs and [his] lack of attention to strength maintenance throughout the battalion." Id.; First Board Decision at 8-10, D.A. 526-28. Around that time, Rodriguez submitted a request for redesignation as a logistics officer, but the Guard denied his request. First Board Decision at 10, D.A. 528; LTC Charles H. Hall's Mem. of Oct. 8, 1996, D.A. 212.
The following year, Rodriguez retired as a lieutenant colonel. See DA Form 4187 (signed Nov. 23, 1997), D.A. 236; Addendum to DA Form 4187 (Nov. 25, 1997), D.A. 237. The retirement forms indicated that Rodriguez had the option to seek reassignment to another Guard or Reserve position, to transfer to the Individual Ready Reserve and retain basic benefits, or to retire with "Special Separation Pay." DA Form 4187, D.A. 236. By opting for retirement, Rodriguez received an unspecified amount of separation compensation. Id. However, Rodriguez manually noted on the form that he "reserve[d his] rights to request reinstatement [under] applicable [Department of Defense] regulations and any other authority." Id.
Rodriguez made several requests for investigations into the circumstances of his relief from command and the denial of his redesignation, including with the State Adjutant General's Office, the Department of the Army Inspector General, and the Defense Department Inspector General's hotline. First Board Decision at 9, 11, 13, D.A. 527, 529, 531. The Adjutant General's investigations uncovered no wrongdoing. Id. at 12, D.A. 530. But the Army Inspector General determined that General Rose's letter of reprimand was, in fact, an illegal reprisal for Rodriguez's having engaged in protected communications under the Military Whistleblower Protection Act, 10 U.S.C. § 1034. U.S. Army Inspector General Agency Report of Investigation, Case No. 35-97, Mar. 13, 1998 ("1998 Inspector General Report") at 2, D.A. 240. The Defense Department's Inspector General notified Rodriguez that he was eligible to petition the Board for Correction of Military Records to remove the letter from his record and provided information on how to submit the petition. M. Jane Deese's Ltr. of Sep. 17, 1998, D.A. 300-01.
The following year, the Army Inspector General issued an addendum to its report purporting to consider new evidence provided by General Rose and withdrawing its characterization of the letter of reprimand as a retaliatory action under the Whistleblower Act.See U.S. Army Inspector General Addendum to Report of Investigation, Case No. 35-97, Dec. 30, 1999 ("1999 Inspector General Report") at 21, D.A. 330 (). The 1999 Inspector General Report bore the signatures of Army Inspector General Lieutenant General Michael W. Ackerman (concurring) and Vice Chief of Staff General John M. Keane (approving). Id. at 22, D.A. 331.
Rodriguez chose not to take his case to the Board, so the affair seemed to be at an end. See Rick A. Schweigert's Ltr of. May 15, 2000, D.A. 333 (). Rodriguez made that decision in part because, prior to his retirement (and before the publication of either Inspector General Report), Guard officials assured him that all letters of reprimand had been removed from his Official Military Personnel File, so there was no need to take further action. See Pl.'s Ltr. of Sep. 27, 2009 at 3, D.A. 365. Investigations into the Army National Guard's method of accounting for its personnel continued, resulting in congressional reports finding that the Guard was overstating its size and therefore regularly inflating its budget requests. See generally U.S. Gov't Accountability Office, GAO-02-540R, Military Personnel Strengths in the Army National Guard (2002), D.A. 334-39.
In 2005, Rodriguez came under consideration for appointment to a senior civilian position within the Department of the Army. Pl.'s Ltr. of Sep. 27, 2009 at 1, D.A. 363. The FBI investigator charged with vetting him for the position inquired about a letter of reprimand in his Official Military Personnel File—the same letter General Rose issued him after his relief from command and that the Army Inspector General had found constituted illegal reprisal (though that opinion was later retracted). Id. Rodriguez believed that someone in the Guard placed the letterin his file after he retired in an effort to sabotage his future employment opportunities. Id. at 4, D.A. 366.
In light of that discovery and after he left his senior position in the Department of the Army, in 2009 Rodriguez petitioned the Army Board for Correction of Military Records for relief. See generally Pl.'s Ltr. of Sep. 27, 2009, D.A. 363-91. In addition to a request that the Board consider his application for relief timely (despite submitting it over a decade after he retired), Rodriguez sought several forms of relief: removal of the letter of reprimand from his official file; removal of Officer Evaluation Reports (which, he alleged, contained negative performance evaluations and formed part of the retaliation against him) and insertion of a favorable Officer Evaluation Report that was missing from his record; a retroactive declaration that he had graduated from the Army War College, with accompanying professional credit and retirement benefits (because he claimed he would have been selected to attend the school as a follow-on tour had he not been improperly removed from command); reinstatement to active status (so as to enable further relief); a retroactive award of backpay and retirement credit; and, most notably, retroactive promotion to the rank of colonel with backpay (which, Rodriguez alleged, he would have attained but for the illegal reprisal). Id. at 24-29, D.A. 386-91. Rodriguez attached six supporting letters from general officers and other officials attesting to the wrongfulness of the actions against him and the quality of his service prior to retirement. Id. at 30, D.A. 392.
The Board requested an advisory opinion from the National Guard Bureau and the New York Army National Guard. First Board Decision at 21, D.A. 539. Their opinion recommended that the Board remove the letter of reprimand from Rodriguez's file but otherwise deny relief.Id. The Board provided Rodriguez a copy of the advisory opinion and gave him an opportunity to comment on it. Id. He submitted a 116-page rebuttal in which he raised at least thirteen flaws in the opinion, including accusing the Bureau and the Guard of colluding to harm him, questioning both the authority and the neutrality of the Guard officer assigned to the case, and attacking the Bureau's procedures for handling and issuing advisory opinions. Id. at 22-23, D.A. 540-41.
The Board released its voluminous report nearly a year later. See generally id. It reviewed each of Rodriguez's allegations in detail and concluded that he was entitled only to partial relief. Id. Although servicemembers must typically petition for relief within three years of the alleged error, 10 U.S.C. § 1552(b), the Board decided to waive the...
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